© 2011 Environmental Civil Litigation: Procedures, Priorities and Results Aileen M. Hooks Baker Botts L.L.P.

USEPA's National Enforcement Initiatives  Discharges of raw sewage and contaminated stormwater  Concentrated animal feeding operation ("CAFO") waste  Widespread Air Pollution from Largest Sources  Coal-fired utilities  Cement manufacturing sector  Glass manufacturing sector  Sulfuric and nitric acid manufacturing sector

USEPA's National Enforcement Initiatives  Air Pollution affecting Community Health  Mining and Mineral Processing Operations  Pollution reduction - hazardous waste  Energy Extraction Sector Environmental Compliance  Air  Water  Land

Approaches to Civil Environmental Claims  Enforcement by Regulatory Authorities  Private Party Litigation  Use of Class Action  Use of Non-Environmental Laws  Citizen Suits

Types of Citizen Suits  Two basic types of "citizen suits" authorized under US federal law:  Mandatory Duty Suits  Citizen Enforcement Actions  Other related statutory rights of citizens:  Petitions for Review of Agency Actions  Petitions for Objections to Title V Permits  Citizen suits under state law (not all states)

Mandatory Duty Suits  Potential for affecting EPA's rulemaking agenda through mandatory duty suits  EPA actions under court-mandated deadlines:  NAAQS  NSPS  MACT

Dramatic Increase in Citizen Enforcement Suits  Increased access to compliance information  Self-reporting mechanisms  Technological advancements  Enhanced coordination  Coordinated strategies around certain issues: coal-fired power generation, emissions events  Litigation barriers reduced  Legal organizations partnering with grass roots groups.  Threshold resources have been reduced  Stable of experts developed for litigation purposes

Recent Citizen Suit Trends  Common plaintiffs  Common claims:  Federal Clean Air Act and Clean Water Act  Emissions violations and emissions events  Legacy permits and permit representations  Common demands:  Emissions reductions and controls  Enhanced monitoring  Civil penalties  Funding for environmental projects  Attorneys fees